Georgia high court: State can’t be sued without its consent

A challenge to a Georgia law banning most abortions after 20 weeks has led the state’s highest court to reaffirm that the state can’t be sued without its consent. But the court also said Monday that state officials can be sued as individuals to prevent them from enforcing laws alleged to violate the state Constitution.

The ruling came as the Georgia Supreme Court rejected the challenge to a 2012 law that bans doctors from performing abortions five months after an egg is fertilized, except when a fetus has a defect so severe it is unlikely to live. The law also makes an exception to protect the life or health of the mother, but not for cases of rape or incest.

The American Civil Liberties Union sued to stop enforcement of the law on behalf of three obstetricians, saying the statute violates privacy protections guaranteed in the state Constitution. The lawsuit said the exceptions are too narrow and that doctors could face prison even when treating patients “in accordance to the best medical judgment.”

The lawsuit challenging the law’s constitutionality was filed against Gov. Nathan Deal and other state officials in their official capacities.

The concept of sovereign immunity shields the state and state agencies from being sued in their official capacity unless the General Assembly waives that protection, Justice Keith Blackwell wrote in the unanimous opinion. But he added, “we recognize the availability of other means by which aggrieved citizens may obtain prospective relief from threatened enforcement of unconstitutional laws.”

Since the state officers were sued in their official capacities, the lawsuit effectively targeted the state itself and citizens have no right to sue the state without the state’s consent, Blackwell wrote. Citizens do, however, generally have the right to sue state officers in their individual capacities if the officials are pursuing official actions that are alleged to be unconstitutional, he added.

That means the obstetricians could sue the state officers in their individual capacities, the opinion says. The high court acknowledged in a footnote that lawsuits against individual state officers may be less convenient than suing the state and suggested the state General Assembly could fix that “by enacting a statutory waiver of sovereign immunity for suits like this one.”

Andrea Young, executive director of the ACLU of Georgia says that while the organization disagrees that state law bars lawsuits against state officers in their official capacity, they are pleased the door remains open to sue them as individuals.

“By providing a path for Georgians to hold their legislature accountable for unconstitutional laws, this ruling means we can now continue the legal fight against Georgia’s unconstitutional abortion ban,” Young said in an emailed statement. “While the abortion ban has been in place, women in Georgia have been unable to get the health care they need.”

The attorney general’s office is reviewing the decision, spokeswoman Katelyn McCreary said in an email.

The ACLU filed the lawsuit on Nov. 30, 2012, about a month before the law was to take effect. Fulton County Superior Court Judge Doris Downs entered an order about three weeks later putting the law on hold until the legal challenge could be resolved.

Fulton County Superior Court Judge Kimberly Esmond Adams, who had taken over the case, ruled in May 2016 that the suit was barred by sovereign immunity and the ACLU appealed to the state Supreme Court.